76 J. Kan. Bar Assn. 5, 18 (2007). Will the Legal Profession Ever Be the Same? Disappearing Trials and ADR in Kansas.

• Author: By Hon. Robert W. Fairchild and Arthur J. Thompson

Kansas Bar Journals

Volume 76.

76 J. Kan. Bar Assn. 5, 18 (2007).

Will the Legal Profession Ever Be the Same? Disappearing Trials and ADR in Kansas

Kansas Bar JournalVolume 76, May 200776 J. Kan. Bar Ass'n 5, 18 (2007)Will the Legal Profession Ever Be the Same? Disappearing Trials and ADR in KansasBy Hon. Robert W. Fairchild and Arthur J. ThompsonI. Introduction

The trial lawyer is the most glamorous figure in the law. A quick screening of every "lawyer show" on television will confirm this fact. The trial lawyer is the star of the legal profession. However, recent experience, supported by recent statistics, demonstrates that the role of the trial lawyer is in transition - a transition away from trials. Along with the trial lawyer's role, the roles of the trial judge and the courts in general are also changing. To accommodate these changes, those of us who are involved in the legal system need to be aware of our evolving roles and work to keep our system relevant and viable.

The U.S. Constitution vests the "Judicial Power" of the United States in "one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish."1 The Constitution of the state of Kansas vests the judicial power of the state in one court of justice, "which shall be divided into one supreme court, district courts, and such other courts as are provided by law."2 Neither constitution establishes courts as the primary dispute resolvers of the nation or state. Nevertheless, it is this role that courts are increasingly coming to play.

If our nation's courts are to remain viable and relevant they must recognize that their role has changed and adapt and change the way in which they do business. As researchers have collected data about the manner in which disputes are being resolved it has become apparent that lawyers have accepted and adapted to the change in their role far more quickly than the courts have. We intend to look at the data that has been gathered concerning the number of trials being conducted in our courts and reach some conclusions concerning the implications this data has for the manner in which the courts function.

On Dec. 8, 2003, the American Bar Association (ABA) issued the following media release concerning the decreasing numbers of trials experienced by our courts:

The data speak to a trend that could have long-term implications for the legal system, for the practice of law as we know it, and for the public. Will the decrease in trials pose a long-term threat to the fair and impartial administration of justice? Or are new methods of resolving disputes satisfactorily replacing the trial process? Is the increase in the number of arbitrations and mediations equivalent to the decline in the number of trials? Has the decline affected the training of lawyers and judges? Will the courts' participation in disputes be radically changed? How will these trends affect the public's right to know? What steps should the organized bar take in light of this phenomenon? Does justice need to be 'seen' to be 'done?'3

2. The Data

   Trial courts workloads have grown steadily in recent years but the number of federal and state trials have declined dramatically. While Kansas civil filings have increased 280 percent from 1978 to 2005, the number of cases going to trial have decreased 24 percent. The Kansas district court statistics and charts used in this article come from a compilation of the Annual Reports of the Courts of Kansas from fiscal years 1978 to 2005.4

   Recently, the ABA has devoted a great deal of effort to examining the phenomenon of the decrease in the number of trials. The ABA Litigation Section contracted with Marc Galanter of the University of Wisconsin Law School to collect as much data as possible about the number of trials held in our courts, especially in the federal court. That data and other research projects were discussed and analyzed in a two-day symposium convened in December 2003.5

   Over the past few years many different organizations have gathered and examined data on the numbers of trials being held in our courts. In federal court:

   ... dispositions have increased by a factor of five - from 50 to 258 thousand cases. But the number of civil trials in 2002 was more than 20 percent lower than the number in 1962 - some 4,569 now to 5,802 then. So the portion of dispositions that were by trial was less than one-sixth of what it was in 1962 - 1.8 percent now as opposed to 11.5 percent in 1962.6

   There may be reason to question whether the total number of days devoted to trials has decreased at the same rate as trials themselves have. Galanter reports that for federal courts:

   Civil trials that lasted four days or more were 15 percent of trials in 1965 and 29 percent of trials in 2002; trials of three days or more rose from 27 percent to 42 percent over the same amount of time . . . [T]his shift to longer trials is produced by an increase in the number of the longer trials combined with a shrinking of the number of short trials.7

   The number of Chapter 60 and 61 and domestic cases filed in Kansas district courts has increased from 68,937 in 1978 to 198,872 in 2005, a 280 percent increase. In the same period, the number of cases going to trial decreased from 7,783 to 5,880, a 24 percent decrease. During this same period in which there was this 280 percent increase in case filings, the number of judges hearing these cases increased from 211 (in 1978) to 238 (in 2005), a 13 percent increase. In a National Center for State Courts (NCSC) survey of 11 unified courts, Kansas ranked as having the highest number of civil cases per 100,000 population (7,511) while being ranked 34th in population.8

   The Kansas statistics are very similar to the statistics gathered in other states. The NCSC prepared a report comparing state trial court case filings and cases tried on a national basis. The report shows the number of trials in the courts of general jurisdiction of 21 states (and the District of Columbia) that contain 58 percent of the U.S. population for the years 1976 to 2002. The percentage of cases reaching jury trial declined from 1.8 percent to 0.6 percent of total dispositions and the percentage of cases being tried to the bench fell from 34.3 percent to 15.2 percent of the total case dispositions.9

   1. Chapter 60 civil cases

      Chapter 60 civil case filings in Kansas increased 62 percent from 15,592 in 1978 to 25,029 in 2005.10 In the same time period, cases going to trial decreased from 3,333 to 1,692, a 49 percent decrease. Jury trials decreased by 70 percent from a high of 502 in 1982 (the highest number) to 150 in 2005.

   2. Chapter 61 civil cases

      Chapter 61 civil cases increased from 29,345 in 1978 to 135,706 in 2005, a 4.6 times increase.11 Trials to the court decreased from 1,337 in 1979 (the first year for that statistic) to 1,267, a 5 percent decrease. The highest number of trials held was 2,517 in 1996, and in the last 10 years there has been a 50 percent decrease in trials.12

   3. Domestic cases

      At a time when the total domestic filings increased from 23,138 in 1983 to 38,137 in 2005, a 65 percent increase, domestic cases going to trial decreased from 3,936 in 1983 (the first year for keeping this statistic) to 2,921 in 2005, a 26 percent decrease.13 The highest number of domestic trials was 6,215 in 1999. There has been a 53 percent decline in domestic bench trials in the last seven years.

      One factor that may have affected the decrease in domestic trials is the decline in the number of divorces. Divorces decreased from a high of 21,702 in 1981 to 15,047 in 2005, a 31 percent decrease.

      NCSC studied the factors that affect the growth of domestic relations cases. The NCSC concluded, "While many factors may affect the growth of the domestic relations caseload, one force has been the increase in civil protection/restraining order cases. Much of the workload associated with domestic relations cases occurs as post-judgment activity. For example, requests for modification of support orders or visitation orders can occur multiple times over many years."14 The Office of Judicial Administration does not keep track of post divorce motions.

      The number of Kansas petitions filed seeking Protection from Abuse and Protection from Stalking orders has increased significantly.15 In 2005, 30 percent of all Kansas domestic cases were protection orders. Protection from Stalking cases went from 2,390 in 2003 to 3,287 in 2005, a 38 percent increase.

   4. Felony cases

      Kansas courts have seen an increase in felony case filings from 9,901 in 1979 to 18,803 in 2004, a 90 percent increase. Felony jury trials did not increase at the same rate during this same time period, going from 463 to 479, or a 7 percent increase.

      The trends seen in the Kansas statistics reflect those of other jurisdictions. The ABA Litigation Section reports that:

      In federal courts, the decline in trials has been steep and dramatic. In 1962, there were 5,802 civil trials in the federal courts and 5,097 criminal trials, for a total of 10,899. In 1985, total federal trials had risen to 12,529. By 2002, however, trials had dropped to 4,569 civil trials and 3,574 criminal trials or 8,143. Thus, our federal courts actually tried fewer cases in 2002 than they did in 1962, despite a five-fold increase in the number of civil filings and more than a doubling of the criminal filings over the same time frame. In 1962, 11.5 percent of federal civil cases were disposed of by trial. By 2002, that figure...